Dear Google: Stand Up For Fair Use In The Google Book Fight

from the don't-get-too-cute dept

Now that a judge has rejected the "settlement" between Google and the Authors Guild, many people are asking what will happen next. There may be appeals or alternative settlements proposed, but given my previous statements on the settlement, it'll probably come as little surprise to people that I agree with Tim Lee that Google should go back to standing up for fair use. It should take this fight on and show that its scanning of such books is fair use, and not infringement at all. It should show that it doesn't need any kind of settlement, because it's not violating copyright law. And, as we've discussed, it now has more caselaw on its side. Since the original settlement came about, Turnitin's database of the works of others was found to be legal, which many people are realizing helps Google's case quite a bit.

I think the failure of the settlement may strengthen Google's fair use argument. Fair use exists as a kind of safety valve for the copyright system, to ensure that it does not damage free speech, innovation, and other values. Although formally speaking judges are supposed to run through the famous four factor test to determine what counts as a fair use, in practice an important factor is whether the judge perceives the defendant as having acted in good faith. Google has now spent three years looking for a way to build its Book Search project using something other than fair use, and come up empty. This underscores the stakes of the fair use fight: if Judge Chin ruled against Google's fair use argument, it would mean that it was effectively impossible to build a book search engine as comprehensive as the one Google has built. That outcome doesn't seem consistent with the constitution's command that copyright promote the progress of science and the useful arts.

Reader Comments

I think we will see conflicting rulings regarding TurnItIn and Google Books, and it has a lot more to do with tradiotional concepts of controlling content than the actual law.

Copyright is a legacy patriarchal system, with gatekeepers and middlemen. Tradionational book publishing is part of this established system, whereas students owning copyrights on papers they wrote for classes, and thus controlling what others do with them, is simply an unintended/undesired consequence of this system. Giving students this power does not jive with the tradionational model of content control, and that probably has a lot more to do with the TurnItIn ruling than any meaningful legal interpretation.

Re:

I think you're probably right here. Not that I disagree with the TurnItIn ruling, but the whole purpose behind IP is to maintain plutocracy (and control by the rich), the TurnItInCase doesn't violate that purpose (if anything, it can help maintain control by restricting our behavior) and so it's allowed, but the Google book scanning issue is good for the general public and the rich can't have that.

Re:

"whereas students owning copyrights on papers they wrote for classes, and thus controlling what others do with them, is simply an unintended/undesired consequence of this system."

I don't think this is necessarily true. Making copy'right' opt out wasn't intended to allow people control over their works (because people can always opt in), it was intended to create artificial scarcity. The idea of opting out wasn't really a consideration, and in fact is a contractual loophole to the intent of copy'right' that wasn't thought of at the time. GPL and other licenses weren't around at the time and came about considerably later. Copy'right' (or making it opt out) was intended to create artificial scarcity by making everything copy'right' to prevent the free distribution and copying of most works. This creates artificial scarcity which raises the price of the available works that are under the control of the big corporations that lobbied for these laws. It makes it harder for a radio stations, for example, to replay a song written by Joe Blow in fear of infringement just because Joe blow didn't think of opting (in or) out at the time when he made the song because copy'right' was the last thing on his mind when he made the song. GPL and similar licenses were an unintended consequence of copy'right' and of course these days almost everyone is familiar with copy'right' and has an arsenal of licenses designed to (at least partly) circumvent it when they create works.

But you're right, copy'right' wasn't intended for students to use it to prevent non-human (ie: schools, government agencies, corporations) entities from restricting the copying of works.

Re:

I don't really think it's going to help Googles case. Not that it shouldn't, just that the rulings seems to be consistent with the idea that copy'right' is mostly used to reduce the consumption and production of content, the copying of content for the purpose of consuming it, and to create artificial scarcity and it's not meant for the purpose of preventing the above. The GPL, for example, is an unintended consequence of copy'right' and so are many similar licenses. In the TurnItIn case the works are being used to prevent the copying of work for consumption (ie: by the teacher). It is the consumption of the work that benefits the student, the teacher reads the work and gives the student a good grade. The purpose of copy'right' is to prevent commoners from benefiting from the consumption of copied works (at least without paying monopoly prices), in the TurnItInCase the students are trying to establish the opposite, and so the ruling is against the students. The database doesn't consume works in that it's not a person that reads them, and so it's OK for it to be used to restrict the consumption of copied work (by people).

In the Google case, the copying is being used to facilitate consumption and competition and copy'right' isn't intended for that purpose. Copy'right' is intended to create artificial scarcity to facilitate income inequality and I expect that future rulings will be consistent with its true intent.